Are Article 82 EC and Intellectual Property Interoperable? The State of the Law Pending the Judgment in Microsoft v. Commission

Abstract

The objectives of intellectual property rights (IPR) and competition law are essentially the same: both promote innovation to the benefit of consumers. IPRs are, however blunt instruments that strike the right balance in general, but in exceptional individual situations may not achieve (and may sometimes even obstruct) the innovation policy goal. Competition law is a useful tool to redress the balance in these situations, and the European Commission and EC courts have recognized that in exceptional cases the exercise of IPRs may infringe competition law. This article examines the extent to which Article 82 EC restricts the use of IPRs, pending the judgment of the CFI in Case T-201/04, Microsoft v. Commission.

Keywords: intellectual property, anitrust, competition law, European Commision, refusal to license